CAL BANK LIMITED vs. RICHES CORNER COMPANY LIMITED & 3 ORS. AND NANA BOAKYE [2018]DLHC3720

Date	2018-04-04
Suit No.	SUIT NO.INTS/01/18
Citation No.	[2018]DLHC3720

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

KWADWO DEI KWARTENG FOR CLAIMANT

E.N. POKU FOR EXECUTION CREDITOR

[2018]DLHC3720
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													<main id="main" class="content" style="min-height: 60rem" >CAL BANK LIMITED<o:p></o:p>vs.<o:p></o:p>RICHES CORNER COMPANY
LIMITED &amp; 3 ORS. AND NANA BOAKYE<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SUIT NO.INTS/01/18&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 4TH JUNE, 2018<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>KWADWO DEI KWARTENG FOR
CLAIMANT&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

E.N.
POKU FOR EXECUTION CREDITOR<o:p></o:p>

ANGELINA
MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT<o:p></o:p>

RULING<o:p></o:p>

</div>On
30/08/2017, one Nana Boakye, who described himself as the attorney of Kofi
Aboagye Nyame, filed a notice of claim in respect of House number 2 Block XI,
Manhyia Extension, Kumasi which the execution creditor herein, CAL BANK
LIMITED, had attached in execution. The claimant claimed ownership of the said
property. <o:p></o:p>The
execution creditor also filed a “Notice Of Dispute Of Claim” on 08/09/2017.
Upon an ex-parte application filed by the Registrar of this court on
06/12/2017, an order was made on 08/01/2018 for the claimant and the execution
creditor to appear in court for the determination of the issue of ownership of
the house which has been attached. <o:p></o:p>When
the parties to the interpleader application appeared in court, they were
ordered to file their respective affidavit of interest and affidavit in
response, and exhibit all documents relevant to the determination of the
matter. Based on the depositions contained in the affidavits filed and the
documents exhibited thereto, the court ordered both counsel to file their
submissions, a further order was made for counsel to address the court as to
whether the holder of a power of attorney can initiate proceedings in court in
his own name. <o:p></o:p>The
point raised by the court on whether the holder of a power of attorney can
institute an action in his own name will be dealt with first. It is to be noted
that counsel for the execution creditor did not file any submissions on this
point. For the claimant, counsel conceded that Nana Boakye issued the notice of
Claim in his name, but he disclosed the capacity in which he did so, that is, the
attorney of Nana Aboagye Nyame, and proceeded to exhibit the said power of
attorney. Counsel then argued that the capacity of the attorney has not been
lost and the court can grant an amendment to reflect the capacity of the
attorney. He cited and relied on the case of Kimon Compania Naviera S.A.R.P.&nbsp;
&amp; Ors v. Volta Lines Ltd (1973) 1 GLR 140. <o:p></o:p>The
law is that the holder of a Power of Attorney who is mandated to sue, can only
do so in the name of his principal, and not in his own name. In the Kimon
Compania Naviera case referred to above, the court stated this legal
position as follows (holding 1):&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 
&nbsp;a
person suing by a lawful attorney could only sue in the name of the principal
and not in his own name…&nbsp;<o:p></o:p><p class="MsoNormal" style="text-align: justify; line-height: 115%; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;">In the above cited
case however, the court did not close the door to the Plaintiffs who had to
amend the title of the suit to reveal the real Plaintiffs who were in
existence. In the instant case also, the Claimant has disclosed to the court
that he is bringing the claim as the attorney of Kofi Aboagye Nyame. He ought
to have issued the notice of claim in the name of Kofi Aboagye Nyame, acting
per his lawful attorney and not the other way round. This error is however not
fatal as there is ample evidence on record that the real claimant is Kofi
Aboagye Nyame who has appointed Nana Boakye as his attorney. After perusing the
Power of Attorney exhibited to the claimant’s affidavit of interest, exhibit
‘NB’, the court grants the Claimant leave to amend the title of the
Interpleader application to read: Kofi Aboagye Nyame, per his lawful attorney
Nana Boakye- Claimant.<o:p></o:p><p class="MsoNormal" style="text-align: justify; line-height: 115%; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;">Next, the substance
of the application will be dealt with. In the affidavit of interest filed on
behalf of the execution creditor, it has been deposed that Kofi Aboagye Nyame
is the Lessee of the property in issue as per exhibit ‘NB 1’, the title deeds
covering the property. The said Kofi Aboagye Nyame created a 30-year sublease
out of his 82- year interest in favour of the Defendant /Judgment Debtor herein
as in exhibit ‘NB 2’.&nbsp; It has further
been deposed that this court in its ruling dated on 17/12/2012, granted an
application for a Charging Order brought by Tanoah Capital Point Limited who
was seeking to recover a judgment debt from Riches Corner Limited (the same Defendant/Judgment
Debtor herein). Another deposition made on behalf of the Claimant is that, the
Court Order of 17/12/2012 extinguished the 30-year proprietary rights of Riches
Corner Limited in the property in issue. In his submissions filed in this
court, counsel for the Claimant argued, among other things, that the property
in issue cannot be sold because the proprietary interest of the head lessee
goes beyond the 30-year sublease.<o:p></o:p>